M/s Ittina Properties Pvt Ltd , Bangalore V. The Deputy Commissioner of Income Tax Circle-3(1)(1), Bangalore

ITA 1297/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1394 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V CHANDRASHEKAR
• Keywords: Principle of natural justice; Condonation of delay; Revised return; Set aside
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, BENGALURU BEFORE SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.1297/BANG/2018 (ASSESSMENT YEAR: 2012-13) M/S.ITTINA PROPERTIES PVT. LTD. NO.1054, 3 RD BLOCK, 7 TH MAIN KORAMANGALA, BENGALURU-560034. PAN: AACI 3805 Q APPELLANT VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 3(1)(1), BENGALURU. RESPONDENT APPELLANT BY : SHRI V.CHANDRASHEKAR, ADVOCATE. RESPONDENT BY : SHRI R.N.SIDDAPPAJI, ADDL.CIT(DR) DATE OF HEARING: 15/05/2019 DATE OF PRONOUNCEMENT: 12/06/2019 O R D E R PER PAVAN KUMAR GADALE, JM: THE ASSESSEE HAS FILED APPEAL AGAINST THE ORDER PASSED BY THE CIT(A) DISMISSING THE ASSESSEES PETITION FOR CONDONATION OF DELAY IN FILING THE APPEAL. THE LEARNED AR SUBMITTED THAT THE CIT(A) HAS ERRED IN DISMISSING THE ASSESSEES APPEAL WITHOUT PROVIDING ADEQUATE OPPORTUNITY AND ALSO NARRATED FACTS IN THE PETITION FOR CONDONATION OF DELAY AND PRAYED THAT AN OPPORTUNITY BE GRANTED TO THE ASSESSEE TO REITERATE THE SUBMISSIONS MADE BEFORE LOWER AUTHORITIES WITH ITA NO.1297/BANG/2018 PAGE 2 OF 6 SUBSTANTIVE EVIDENCES. CONTRA, LEARNED DR OBJECTED TO THE SUBMISSIONS AND PRAYED THAT THE DELAY IS INORDINATE AND THE CIT(A) WAS RIGHT IN DISMISSING THE APPEAL. 2. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE RESTRICT THE ADJUDICATION TO THE EXTENT OF CONDONATION OF DELAY. WE FOUND THAT THE LEARNED AR RELIED ON THE JUDICIAL DECISIONS AND ALSO THE FACT THAT THE APPEAL COULD NOT BE FILED BY THE ASSESSEE-COMPANY DUE TO ADVICE OF THE EARLIER TAX CONSULTANT AND SUBSEQUENTLY ON THE ADVICE OF THE MEW TAX CONSULTANT, THE APPEAL WAS FILED WITH A DELAY OF 425 DAYS. WE CONSIDER IT APPROPRIATE TO REFER TO THE AFFIDAVIT FILED FOR CONDONATION OF DELAY WHICH IS AS UNDER: THE ABOVENAMED APPELLANT/PETITIONER MOST RESPECTFULLY SUBMITS AS FOLLOWS: 1. AN ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 WAS PASSED ON 27.03.2015 FOR THE ASSESSMENT YEAR 2012-13 BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1)(1), BENGALURU. 2. THE APPELLANT/PETITIONER M/S. ITTINA PROPERTIES PRIVATE LIMITED IS A COMPANY FORM OF ORGANIZATION, AND FOR THE IMPUGNED ASSESSMENT YEAR 2012-13, HAS DERIVED INCOME FROM BUSINESS. THE APPELLANT/PETITIONER FILED ITS REVISED RETURN OF INCOME ON 29.08.2013 FOR THE ASSESSMENT YEAR 2012-13 DECLARING RS. 2,29,94,264/- AS ITS TOTAL LOSS. FOR THE RECORD, THE APPELLANT/PETITIONER IS FILING ITS RETURN OF INCOME REGULARLY AND PAYING TAXES TO THE GOVERNMENT REGULARLY. 3. THE CASE WAS SELECTED FOR SCRUTINY AND UPON ISSUANCE OF STATUTORY NOTICES; THE APPELLANT/PETITIONER PRODUCED AND PROVIDED ALL THE DETAILS CALLED FOR DURING THE COURSE OF ITA NO.1297/BANG/2018 PAGE 3 OF 6 SCRUTINY PROCEEDINGS. THE LEARNED ASSESSING OFFICER CONCLUDED THE ASSESSMENT BY PASSING AN ORDER UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 27/03/2015 ASSESSING THE TOTAL LOSS OF THE APPELLANT AT RS. 1,96,81,718/- AS AGAINST RS. 2,29,94,264/- DECLARED BY THE APPELLANT/PETITIONER, WHICH WAS RECEIVED BY THE APPELLANT/PETITIONER ONLY ON 01/04/2015. 4. THE APPELLANT/PETITIONER WISHES TO SUBMIT THAT AS PER THE PROVISIONS OF SECTION 246A OF THE ACT, THE APPELLANT/PETITIONER OUGHT TO HAVE FILED THE STATUTORY APPEAL AGAINST THE IMPUGNED ORDER OF ASSESSMENT PASSED UNDER SECTION 143[3] OF THE ACT DATED 27/03/2015 WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THE SAID ASSESSMENT ORDER I.E. THE ORDER OF ASSESSMENT WAS RECEIVED BY THE APPELLANT/PETITIONER ONLY ON 01/04/2015 THEN AS PER THE SAID PROVISIONS OF SECTION 246A OF THE ACT THE APPELLANT/PETITIONER OUGHT TO HAVE FILED THE APPEAL ON OR BEFORE 01/05/2015 WHICH IS 30 DAYS FROM THE DATE OF RECEIPT OF THE SAID IMPUGNED ORDER. FOR THE REASONS MENTIONED BELOW THE APPELLANT/PETITIONER WAS PREVENTED AND COULD NOT FILE THE STATUTORY APPEAL UNDER SECTION 246A OF THE ACT WITHIN THE STIPULATED TIME AS ENVISAGED IN THE PROVISIONS OF THE ACT. 5. IT IS SUBMITTED THAT IN THE IMPUGNED ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE ACT DATED 27/03/2015 THE LEARNED ASSESSING OFFICER HAS MADE THE FOLLOWING ADDITIONS AND DISALLOWANCE TO THE LOSS RETURNED BY THE APPELLANT/PETITIONER: [A]. BUSINESS PROMOTION EXPENSES OF RS. 15,45,723/-, [B]. DISALLOWANCE U/S 14A R.W.R. 8D OF RS. 17,11,823/- AND [C]. DISALLOWANCE U/S 40A(IA) OF RS. 55,000/- . 6. IT IS SUBMITTED THAT AS SOON AS THE IMPUGNED ORDER OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS RECEIVED BY THE APPELLANT / PETITIONER, IT WAS ASKED TO THE CONSULTANT WHO WAS HANDLING THE INCOME-TAX MATTERS AND WHO APPEARED IN THE SCRUTINY ASSESSMENT PROCEEDINGS TO SUGGEST AS REGARD TO THE NEXT COURSE OF ACTION AND IF NECESSARY TO FILE A STATUTORY APPEAL UNDER SECTION 246A OF THE ACT WITHIN THE STIPULATED TIME ALLOWED IN THE STATUTE. THE SAID CONSULTANT WHO WAS HANDLING THE TAX MATTERS SUGGESTED THE APPELLANT/PETITIONER NOT TO FILE AN APPEAL AS AGAINST THE ITA NO.1297/BANG/2018 PAGE 4 OF 6 IMPUGNED ORDER OF ASSESSMENT STATING THAT SINCE THE APPELLANT/PETITIONER HAD NO GOOD CASE ON MERITS OF THE MATTER. 7. IT IS SUBMITTED THAT THE SAID TAX CONSULTANT WHO WAS HANDLING ALL TAX MATTERS DISCONTINUED HER ASSOCIATION WITH THE APPELLANT/PETITIONER IN THE MONTH OF JUNE 2015. THEREAFTER THE APPELLANT / PETITIONER ENGAGED THE SERVICES OF NEW TAX CONSULTANTS AND STATUTORY AUDITORS. WHILE ANALYZING THE PAPERS, THEY CAME ACROSS THE IMPUGNED ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THEACT DATED 27/03/2015. WHEN IT WAS ASKED BY THE PRESENT TAX CONSULTANT ABOUT THE STATUS OF THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT DATED 27/03/2015, HE WAS INFORMED THAT THE APPELLANT / PETITIONER HAS NOT PREFERRED ANY STATUTORY APPEAL BEFORE THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS) SINCE IT WAS ADVISED BY ITS EARLIER TAX CONSULTANT NOT TO FILE AN APPEAL AGAINST THE SAID IMPUGNED ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE ACT DATED 27/03/2015 AS IT WAS INFORMED THAT IT HAD NO GOOD CASE ON MERITS OF THE MATTER AND THUS IT WAS INFORMED THAT NO APPEAL OR ACTION HAS BEEN PREFERRED BY THE APPELLANT/PETITIONER. 8. THE PRESENT TAX CONSULTANT AFTER VERIFYING THE RELEVANT PAPERS EXPRESSED TO THE APPELLANT/PETITIONER THAT THERE IS GOOD AND PRIMA FACIE CASE TO GO 'ON AN APPEAL AND ARGUE THE MATTER AS AGAINST THE IMPUGNED ORDER ASSESSMENT PASSED UNDER SECTION 143(3) OF TH ACT DATED 27/03/2015 AND ADVISED TO PREFER AN APPEAL UNDER SECTION 246A OF THE ACT. SOON AFTER OBTAINING THE PROFESSIONAL ADVICE FROM THE PRESENT TAX CONSULTANT THE APPELLANT/PETITIONER HAS WITHIN REASONABLE TIME HAS FILED THIS STATUTORY APPEAL BEFORE THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS). 9. IT IS SUBMITTED THAT DUE TO THE WRONG PROFESSIONAL ADVICE GIVEN BY THE EARLIER TAX CONSULTANT THE APPELLANT/PETITIONER COULD NOT FILE THE APPEAL BEFORE THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS) WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THE IMPUGNED ORDER OF ASSESSMENT I.E. ON OR BEFORE 01/05/2015 AND BY THE TIME THE APPELLANT/PETITIONER OBTAINED THE PRESENT COUNSEL'S ADVICE, THERE AROSE A DELAY OF ABOUT 374 DAYS IN FILING THE PRESENT APPEAL BEFORE THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS) AGAINST THE IMPUGNED ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE ACT DATED 27/03/2015. ITA NO.1297/BANG/2018 PAGE 5 OF 6 10. IT IS HUMBLY PRAYED THAT THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS) TAKES LENIENT AND COMPASSIONATE VIEW AND CONDONE THE DELAY OF ABOUT 374 DAYS IN FILING THE PRESENT APPEAL AGAINST THE ORDER OF THE LEARNED ASSESSING OFFICER, UNDER SECTION 143(3) OF THE ACT DATED 27/03/2015 AND HUMBLY REQUEST YOUR HONOUR TO HEAR THE SAME ON MERITS FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE. 11. IT IS HUMBLY SUBMITTED THAT IF THIS APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL IS NOT ALLOWED, THE APPELLANT WOULD BE PUT TO GREAT HARDSHIP AND IRREPARABLE INJURY AND ON THE OTHER HAND NO HARDSHIP OR INJURY WOULD BE CAUSED TO THE RESPONDENT IF THIS APPLICATION OF CONDONATION OF DELAY IS ALLOWED. RELIANCE IS PLACED ON THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS (1987) 167 ITR 471 AND ALSO IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD., VS. SMT. NIRMALA DEVI AND OTHERS 118 ITR 507. FURTHER THE APPELLANT RELIES ON ANOTHER DECISION OF THE HON'BLE APEX COURT IN THE CASE OF RADHA KRISHNA RAI VS. ALLAHABAD BANK & OTHERS [2009] 9 SCC 733 AND CIT VS. WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORPORATION LIMITED [2011] 334 ITR 269 (SC). 3. WE, HAVING CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES, FACTS AND CIRCUMSTANCES AND THE LEGAL DECISIONS AND PRINCIPLES OF NATURAL JUSTICE ARE OF THE OPINION THAT THE REVENUE SHALL NOT BE AT A LOSS IF AN OPPORTUNITY IS PROVIDED TO THE ASSESSEE. THEREFORE, TO MEET THE SUBSTANTIAL JUSTICE, WE CONDONE THE DELAY IN FILING THE APPEAL AND SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ENTIRE DISPUTED ISSUED TO THE FILE OF THE CIT(A) TO ADJUDICATE AFRESH AND CIT(A) SHALL PROVIDE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL CO-OPERATE IN FILING INFORMATION AND CLARIFICATION ITA NO.1297/BANG/2018 PAGE 6 OF 6 FOR EARLY DISPOSAL OF THE APPEAL. ACCORDINGLY, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JUNE, 2019. SD/- SD/- (JASON P BOAZ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : BENGALURU D A T E : 12/06/2019 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)- 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE